The focus of this article will review the various legal rights afforded a military member and his employment rights upon returning from a military deployment or activation.
The latest revisions to this statute were enacted in October 1994 (congress has amended the law in 1996, 1998 & 2001). The revisions overhauled the World War II era Veterans Reemployment Rights Act. The amendments overhauled several benefits and have improved the act considerably.
The purposed of USERRA is to encourage military service, minimize the disruption to both the employer and the military member, and more importantly, prevent discrimination when the military member returns to his or her civilian employment.
USERRA covers all categories of employers regardless of the size, full time, part time and probationary employees. The service that is covered, generally speaking, is initial military training, funeral duty, processing, activation and most other types of military service. The act also provides rights to the military member for either voluntary or involuntary activation.
The act articulates the service members’ duties, which primarily requires the military member to give his employer notice of a pending activation and/or departure and also an obligation to apply for a reinstatement upon return from duty. Notice can either be written or oral, but it must be in advance, unless it us impossible, unreasonable or precluded by military necessity. Once the military member has deployed and is returning to his civilian employment, in order to be reemployed by the employer, he must request a timely reinstatement within the five year window of being activated. The military member must also have been honorably or generally discharged from his military obligation. The military member must request to be reinstated in writing but the statute does not set forth any prescribed format and the timing of the reapplication for reinstatement depends upon the length of service.
The employer also has certain obligations set out under the statute. The military member who seeks to be reinstated is under an obligation to apply for reinstatement, likewise, the employer must promptly reinstate the military member. The employer must also ensure that the military member upon reinstatement receives seniority credit, health benefits, pension credit, job status, and can only be removed for cause.
The statute is very useful and prescribes a variety of remedies to both the employer and the employee. If there are questions, the USEERA sets out a variety of resources through the US Department of Labor, The Veterans Employment and Training Service, and the Employer Support of the Guard and Reserve. The following websites are also helpful www.dol.qov/vets.com, www.dol.gov/vets/regs/fedreq/fina1/2005023961.htm, vvww.dol.gov/vets/whatsnew/useeraguide0704.11 and www.esqr.org